A jury convicted Raylon Young for the murderSee footnote 1
1 of Korey Roney.
The trial court sentenced Young to sixty-five years in prison.

Young contends that the trial court erred in refusing to instruct
the jury on reckless homicide and involuntary manslaughter. We
agree it was error to refuse the tendered instruction on reckless
homicide. Accordingly, we reverse and remand for a new trial.

Facts

On the night of November 19, 1995, the victim, Korey Roney,
and several friends, about nine people in total, were wrestling in
the front yard of Tijuan Johnson's home at 3142 North Orchard in
Indianapolis. By around 8 p.m., the others had stopped in order to
watch the continuing contest between Korey and Marvin Graves which
was taking place near the house, just south of the front porch.
Though it was dark, the small, treeless front yard was illuminated
by the home's porch light, by the neighbor's lights, and by the
street light to the south of the house. Tijuan Johnson estimated
the distance from his front porch to the road at about twenty feet.
As the spectators cheered Korey and Marvin, a blue 1979
Oldsmobile Ninety-eight with a white top moving south on North
Orchard pulled up north of the home's driveway and stopped abruptly
between two cars parked on the street such that the Oldsmobile's
passenger side faced the front of the house. All five eyewitnesses
who testified said that it was Raylon Young they saw in the
passenger side of the car. Young was "hanging out the window with

a gun" and yelled three times to the crowd gathered outside:
"What's up now, punk m_____ f______?" or some variation thereof.
(Id.) Raylon told the driver to "pull off", raised a handgun in
his right hand and fired twice. The car then went north up the
avenue.

When asked to describe the apparent target of this first
series of shots, the witnesses gave various answers. Willie Pargo
responded to the prosecutor's question, "Did he shoot towards the
group of people or away from them?" by answering, "Like I guess
towards." (R. at 189-90.) Pargo later added "[I] don't know who
he was shooting at." (R. at 215.) Danille Hampton, who was
approximately seven feet away from Raylon when he fired the first
two shots, responded "No" when Young's lawyer asked whether she
knew if Raylon was shooting at a specific person or whether she
knew if he was shooting "in the ground, at the sky, [or] just wild
shooting?" (R. at 222, 230.) Glen Underwood testified the gun was
aimed "[a]t all of us. . . . in the direction by the front porch
and around that whole area." (R. at 247.) Damon Brookins said he
saw only the first shot, but with regard to that shot; "He [Raylon]
was just shootin'. I don't know if he had a main target, I don't
know what, you know, I'm just seein' the gun, boom, dude was
pullin' off you know." (R. at 269.)

The physical responses of the crowd to the shots differed
according to where each individual stood. Brookins and Pargo were

standing on the front porch when the Oldsmobile pulled up. Pargo
recognized Raylon and said: "that's Raylon. Open up the door."
(R. at 262.) Brookins scrambled into the house when he saw the
pistol and heard Raylon say "pull off" to the driver. (R. at 263.)
The others standing in the front yard dropped to the ground.
Everyone except Korey got up after the car pulled away. Korey had
been hit in the back of the head and was bleeding.

The Oldsmobile turned around after moving down the street a
short ways and came "flyin' right back". (R. at 247.) When the
others realized that the car was returning they left Korey on the
ground and ran indoors. Raylon was seated on the edge of the
passenger-side door with his arms extended over the car. He fired
about four more shots as the car passed. The Oldsmobile continued
north up Orchard until it reached 33rd, and then turned left
towards Arsenal Street.

Korey lay prone on the ground. The others called the police
who arrived about two minutes later. The coroner reported at 8
a.m. the next morning that Korey Roney was dead and that the cause
of his death was a gunshot wound to the head.

A subsequent police investigation provided additional details.
Several bullet holes and a spent bullet were discovered at 3138
North Orchard Avenue, the house immediately south of 3142 North
Orchard. This neighbor reported that her house had been "shot up"

at the same time as the shooting described above took place. (R.
at 428.) Police discovered another possible spent bullet where
bloody towels which Korey's friends had used to cover Korey's wound
were found, i.e., near the bushes where Korey was before the
shooting began. James Myer, a crime scene specialist from the
Indianapolis Marion County Forensic Services Agency, was unable to
say whether the bullets recovered were fired in random fashion or
specifically aimed by the shooter.

I. Instructions on Lesser Included Offenses

Patricia Caress McMath has filed an excellent brief on Young's
behalf, arguing among other things that the trial court wrongly
refused instructions on lesser included offenses. The analysis set
forth in Wright v. State, 658 N.E.2d 563 (Ind. 1995), determines
whether a court should accept a party's instructions on lesser
included offenses. Under this test the court must first decide
whether the lesser included offense is either inherently or
factually included within the crime charged by the prosecutor's
information. Id. If the lesser offense is inherently or factually
included, the trial judge must consider whether the evidence
provided by both parties creates a serious evidentiary dispute
about the element or elements which distinguish the greater from
the lesser offense. Id. The failure of a trial court to accept
and give a properly tendered instruction when a serious evidentiary

dispute exists is reversible error if a jury could conclude that
the lesser offense was committed but not the greater. Id.

The first two steps of the Wright test involve matters of law
and an appellant need only demonstrate error to prevail on appeal.
When an instruction is refused on grounds that a serious
evidentiary dispute does not exist, we reverse only when there is
an abuse of discretion. SeeChamplain v. State, 681 N.E.2d 696,
700 (Ind. 1997). Where it is not apparent that the instruction was
refused on that basis, we review the trial court's decision de
novo. Id.

II. Young's Reckless Homicide Instruction

Reckless homicideSee footnote 2
2 is an inherently included lesser offense of
murder and thus the first part of the Wright test is satisfied.
Wright, 658 N.E.2d at 567. The only difference between the two
crimes is the mens rea the State must show to obtain a conviction.
Compare Ind. Code Ann. § 35-42-1-1 (West Supp. 1997) with Ind. Code
Ann § 35-42-1-5 (West 1986). The issue in Young's case is thus
whether there is a serious evidentiary dispute about whether Young
knowingly or recklessly killed Roney when he fired the first shots

A person engages in conduct knowingly if, when he engages in
the conduct, he is aware of a high probability that he is doing so.
Ind. Code Ann. § 35-41-2-2(b) (West 1986). One engages in conduct
recklessly if he or she engages in the conduct in plain, conscious,
and unjustifiable disregard of harm that might result and the
disregard involves a substantial deviation from acceptable
standards of conduct. Ind. Code Ann. § 35-41-2-2(c) (West 1986).

The trial court did not make findings regarding whether a
serious evidentiary dispute existed on the issue of Young's mens
rea. Instead, the judge simply stated to the defense counsel that
Young was not entitled to lesser included instructions because he
had raised an alibi defense.See footnote 4
4 (R. at 516.) Presenting an alibi
defense does not automatically bar instructions on a lesser
included offense. See, e.g., Shelby v. State, 258 Ind. 439, 440,
281 N.E.2d 885, 886 (1972) (defendant was charged with robbery and
presented an alibi defense but was convicted of theft, a lesser
included offense of robbery). On the other hand, it may be
somewhat pertinent in making the central inquiry which remains
whether there is a serious evidentiary dispute in regard to the

The evidence about Young's state of mind at the time he fired
the shot that killed Korey Roney is both conflicting and obscure.
Several witnesses acknowledged that they knew Raylon from the
neighborhood and there had been no problems between Raylon and
those who were in the front yard that night, some even stated that
Raylon was a friend. (R. at 214-15, 230-31, 250, 269, 288, 242.)
Willie Pargo and Glen Underwood testified that Raylon had no reason
to be upset with Korey, and that Raylon and Korey had engaged in
friendly conversation just a month and a half before the shooting.
(R. at 214, 243-44.) Raylon's harsh words, "what's up now, punk
m_____ f______?", however, could indicate to a jury that Raylon
desired to do more than simply scare those on the front lawn.
Eyewitness testimony, indeed the testimony of those who were in the
line of fire, disputes this inference however. No witness stated
that he thought Raylon was actually aiming his gun at any specific
person. Danille Hampton, only seven feet away from Raylon at the

time of the first shots, could not determine whether Young was
shooting at anyone in particular or just engaged in wild shooting.
Damon Brookins testified; "he was just shootin' . . . dude was
pullin' off, you know." (R. at 269.) Though shooting in the
direction of numerous people only twenty feet away is obviously
"reckless" behavior no matter whether one is in a set or moving
position, whether Raylon's acts are sufficient to show he was aware
of a high probability that his act would kill is less certain.

While it is Raylon's mental state when he fired the shot which
actually killed Korey that would determine whether he committed
murder or reckless homicide, a jury might glean inferences from the
larger pattern of shots fired to determine this specific mens rea.
Of the estimated six shots fired, one bullet hit Korey in the back
of the head and was discovered on the ground near where Korey lay
after being hit, another was discovered rather far away in a wall
of the home next door. (R. at 367-68.) These neighbors described
their home as being "shot up" at the same time the above events
occurred. (R. at 428.) A crime scene specialist was unable to say
whether the recovered bullets were fired at random targets or
specifically aimed. Also possibly relevant is the fact that Raylon
returned and fired four more shots though all except Korey were
inside the home. Korey was prone on the ground during this time
but was not shot again.

A jury considering these facts could well have found Raylon

was acting recklessly but not knowingly when he fired the shot that
killed Korey. Firing a handgun towards a group of people only
twenty feet away is certainly an act committed in "plain,
conscious, and unjustifiable disregard" of the harm that might
result, and a "substantial deviation from acceptable standards of
conduct," Ind. Code Ann. § 35-41-2-2(c) (West 1986), but given the
specific facts of this case, a jury might reasonably decide that
such behavior did not reflect a knowing killing.

It is the jury's prerogative to decide such questions of fact.
We conclude that the evidence before this jury represented a
genuinely disputed matter and that it was error to refuse the
instruction. Young is entitled to a new trial. Wright, 658 N.E.2d
at 567.

III. Young's Involuntary Manslaughter Instruction

Young also asserts the trial court erred in refusing to accept
his instruction on involuntary manslaughter. Whether involuntary
manslaughter is a lesser included offense in this case is a nice
question, but we are satisfied that it was properly refused because
there was not a serious evidentiary dispute.

It is the intent element that distinguishes involuntary
manslaughter, battery, and criminal recklessness from murder.

Simpson v. State, 628 N.E.2d 1215, 1221 (Ind. Ct. App. 1994),
trans. denied. To prove murder, the State must show that the
defendant knowingly killed. Ind. Code Ann. § 35-42-1-1 (West Supp.
1997). To prove involuntary manslaughter, the State need show only
that the defendant recklessly, knowingly, or intentionally
inflicted serious bodily injury on another person, and killed that
person in the course of such acts. Ind. Code Ann. § 35-42-1-4
(West 1986); Ind. Code Ann. § 35-41-2-2 (West 1986). This language
is admittedly broad, but our cases shed additional light on the
state of mind generally required to convict one of involuntary
manslaughter by showing the defendant killed while violating our
criminal recklessness statute.

As opposed to murder, the involuntary manslaughter statute,
when coupled with the criminal recklessness statute, is generally
applied to individuals who engage in random dangerous conduct which
is not necessarily directed at another, but which results in the
foreseeable death of another. The paradigmatic case occurs when an
individual kills another while driving an automobile in a dangerous
manner. In the present case, the facts indicate that Young knew
the gun he pointed and fired at the gathered crowd was loaded. Cf.Al-Saud v. State, 658 N.E.2d 907 (Ind. 1995) (unloaded gun can
create a sufficient risk of bodily injury to others to convict of
criminal recklessness). Young also must have realized people were
standing in the general direction of his firing. Finally, Young's
taunting words and the fact that he returned and fired more shots

at the house resolves any dispute in our minds about whether
Young's acts were somehow analogous to our involuntary
manslaughter/criminal recklessness cases. Accordingly, there is no
serious evidentiary dispute regarding whether Young committed the
factually included lesser offense of involuntary manslaughter but
not murder or reckless homicide. The trial judge was correct in
refusing Young's tendered instruction on involuntary manslaughter.

Conclusion

We reverse and remand for a new trial.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.

Footnote: 11
Ind. Code Ann. § 35-42-1-1 (West Supp. 1997).
Footnote: 22 Ind. Code Ann. § 35-42-1-5 (West 1986).
Footnote: 33 We do not consider whether Young "intentionally" killed Roney since
the information alleged only that Young "knowingly" killed. (R. at 21.)
Footnote: 44 Eighteen-year-old Franklin Maxey, whose sister had a baby with Young,
testified that Young had been with him in his sister's house at the time of
the shooting. R. at 503-05. He said Young was "like a brother" to him. R.
at 509. At his sentencing hearing, Young testified about his efforts to make
up alibis and admitted he was present at the shooting. R. at 548-49.
Footnote: 55 Whether a defendant raises an affirmative defense bears only
tangentially on the issue of whether there is a serious evidentiary dispute
regarding the State's case in chief. In Champlain, the trial judge reasoned
that the defendant was not entitled to an instruction on reckless homicide
since the defendant had argued that another person had committed the murder.
On review, we held that the trial court's statement that such a defense was
inconsistent with defendant's alternative defense, which conceded Champlain's
involvement but attempted to show a lower level of mental culpability, was
inadequate to explain that no serious evidentiary dispute existed regarding
whether Champlain had committed murder or reckless homicide. Specifically, we
said; "Assuming without deciding that it is within the trial court's
discretion to refuse to instruct on affirmative defenses if they are
inconsistent with the defense's contentions, the issue in this case is whether
an instruction is required when there is a serious evidentiary dispute as to
an element of the State's case in chief." Champlain, 681 N.E.2d at 700.